92 Decision Citation: BVA 92-12368
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-47 271 ) DATE
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THE ISSUE
Entitlement to an increased rating for a left ankle
disorder, currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Michael Martin, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from the decision of March 1990 by the
Department of Veterans Affairs (VA) Providence, Rhode
Island, regional office (RO). The veteran had active
service from 1976 to 1980. His notice of disagreement was
received by the RO in April 1990. The RO issued a statement
of the case in May 1990. The veteran's substantive appeal
was received by the RO in May 1990. A hearing was held
before a hearing officer in July 1990. The hearing officer
confirmed the 10 percent rating in a decision issued later
that month.
The appeal was received and docketed by the Board in October
1990. The veteran has been represented throughout the
appeal by Disabled American Veterans. That organization
presented written argument in December 1990. In March 1991,
the Board remanded the case for additional development. The
requested development was subsequently completed. The RO
confirmed the earlier denials in a decision of June 1991.
The RO issued a supplemental statement of the case in July
1991.
The appeal was returned to the Board in March 1992. The
representative presented additional written argument later
that month. The case is now ready for appellate review.
We note that the veteran has raised the issue of entitlement
to an increased rating for residuals of a right knee
injury. However, that issue has not been developed or
certified for appellate review. Accordingly, we refer the
issue to the RO for any appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO made a mistake by
continuing the previously assigned 10 percent rating for a
left ankle disorder. He asserts that the disorder causes
pain, swelling, and occasionally causes the ankle to give
out.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the claim for an increased rating for a left
ankle disorder.
FINDING OF FACT
The left ankle disorder is productive of no more than
moderate, if any, limitation of motion, and residual lateral
instability.
CONCLUSION OF LAW
The schedular criteria for a disability rating in excess of
10 percent for a left ankle disorder are not met. 38 U.S.C.
§ 5107(a) (1992); 38 C.F.R. § 4.40, Part 4, Code 5271
(1990).
REASONS AND BASES FOR FINDING AND CONCLUSION
We have found that the veteran's claim is "well grounded"
within the meaning of 38 U.S.C. § 5107(a). That is, we find
that he has presented a claim which is not inherently
implausible. We are also satisfied that all relevant facts
have been properly developed. Therefore, no further
assistance to the veteran with the development of evidence
is required.
Much of the history of the veteran's left ankle disorder is
not in dispute. The veteran's service medical records show
that in July 1977 the veteran was treated for a sprained
ankle through the use of a cast. The cast was subsequently
removed and physical examination revealed no pain, swelling,
or instability. In December 1977, the veteran reported a
complaint of having a swollen ankle. The diagnosis was mild
strain, left ankle. In August 1978, the veteran reported a
complaint of his left ankle caving in. He was advised to
wear an ankle support to promote healing of the ligaments.
In July 1979, the veteran again reported a complaint of left
ankle pain. Physical examination revealed that the ankle
was swollen and the range of motion was poor. The
impression was ankle strain (slight). Finally, in the
report of a medical history given in April 1980 for the
purpose of the veteran's release from active duty, the
veteran reported a history of having injured the tendons and
ligaments in July 1977 and of having had his left foot in a
cast for about six weeks. A report of a medical examination
conducted in April 1980 shows that physical examination of
the left ankle was within normal limits. The diagnosis was
strain, ligaments.
In April 1980, the veteran applied for disability
compensation for injuries to the tendons and ligaments of
his left ankle. Subsequently, in a decision of February
1981, the RO granted service connection for residuals of a
left ankle injury, rated as 10 percent disabling. However,
following a disability compensation examination by the VA in
November 1981 which revealed no evidence of any abnormality,
the RO reduced the rating to a noncompensable level in a
decision of December 1981. Following another disability
compensation examination in May 1982, the RO confirmed the
noncompensable rating in a decision of July 1982. The
decision was confirmed by the Board in a decision of
November 1983. The RO again confirmed the noncompensable
rating in July 1984, June 1985, and May 1986. The RO
assigned a 10 percent rating in a decision of November 1986
after a VA compensation examination revealed lateral
instability of the ankle.
In December 1990, the veteran requested an increased rating
for his left ankle disorder. The RO denied that request,
and the veteran perfected this appeal. Under the provisions
of Diagnostic Code 5271 of the VA's Schedule for Rating
Disabilities (38 C.F.R. Part 4), an ankle disorder is rated
on the basis of the degree to which the disorder limits
motion of the ankle. A 10 percent rating is warranted when
there is moderate limitation of motion of the ankle. A
20 percent rating is warranted where the limitation of
motion is marked. After consideration of the evidence of
record, we are of the opinion that the evidence does not
support the claim for a disability rating in excess of
10 percent.
In reaching this conclusion, we have considered testimony
presented by the veteran in a hearing held in July 1990. He
testified that his ankle sometimes gave out, causing him to
fall down stairs on one occasion. He also stated that the
disorder caused bad pain after he had to chase his 2
1/2-year-old son. He said that he sometimes wore elastic
stockings and that at the end of a work day the ankle was
sometimes swollen and more often painful. He estimated that
the ankle turned over once or twice a week. Significantly,
however, he did not say that the ankle disorder was
currently causing limitation of motion of the ankle.
The medical evidence of record also does not show that the
left ankle disorder causes limitation of motion of the
ankle. For example, a report of an orthopedic examination
conducted by the VA in January 1990 shows that the veteran
had no measurable swelling in the ankles, and that range of
motion in the ankles was normal. X-rays were interpreted as
only showing some early osteophyte formation about the talus
of the left ankle and some irregularity of the lateral
malleolus. The impression was status post sprain of left
ankle, severe, manifested by early osteophyte formation
about the talus of the left ankle and some irregularity of
the lateral malleolus. The examiner noted that the disorder
prevented the veteran from doing any work requiring heavy
lifting or agility. A report of a disability compensation
examination conducted by the VA in April 1991 contains
similar findings. Again, the range of motion of the ankle
was essentially normal.
Finally, a medical record from Dr. M. Landy, dated in June
1990, shows that the veteran reported a history of problems
with his left ankle including intermittent giving way, and
more recently, symptoms suggestive of a peroneal tendinitis
picture. For the past couple of weeks, the veteran
reportedly had had pain following no specific injury, but
simply chasing young children around the house. Examination
revealed that he had significant positive anterior drawer
and inversion stress tests. X-rays reportedly revealed that
he opened up the lateral part of the joint quite
significantly, but that there were no significant arthritic
changes. A reconstruction procedure was recommended.
However, no limitation of motion in the ankle was noted in
the record.
Thus, the evidence shows that the veteran's left ankle
disorder is productive of no more than moderate, if any,
limitation of motion of the ankle. Therefore, the schedular
criteria for a disability rating higher than 10 percent for
a left ankle disorder are not met.
In reaching this conclusion, we have considered the
provisions of 38 C.F.R. § 4.40, which provide that
disability of the musculoskeletal system is primarily due to
the inability to perform the normal working movements of the
body with normal excursion, strength, speed, coordination,
and endurance. The functional loss may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness
is as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. However, a little-used part of the
musculoskeletal system may be expected to show evidence of
disuse, either through atrophy, the condition of the skin,
absence of normal callosity, or the like. In the present
case, such indicators of disuse of the ankle are not
present. Therefore, we find no basis for assigning a
disability rating higher than 10 percent pursuant to 38
C.F.R. § 4.40.
We have also considered the provisions of 38 C.F.R. §
3.321(b)(1) regarding the assignment of extra-schedular
evaluations. We find that this provision is not applicable
to this case because the disability picture is not
exceptional or unusual, with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. In this regard, we note
that the veteran has not had to be hospitalized recently,
and his testimony shows that he is able to successfully work
a full time job. Accordingly, we find no basis for
assigning a disability rating higher than 10 percent.
ORDER
An increased disability rating for a left ankle disorder is
denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
WARREN W. RICE, JR. ROBERT D. PHILIPP
FRANCIS F. TALBOT
Continued on Next Page
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a notice of disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.